The Constitutional Rights of Public Enemies in Armed Conflict

by John C. Dehn

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law, and is also a former prosecutor. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.]

I write to take advantage of a generous invitation to guest blog here at Opinio Juris. I do so because the decision to try individuals such as KSM in federal court has generated concern that the Bill of Rights must now be observed to some vague extent in any such trials, and through logical extension, potentially in future military operations. Based on my current research for an article (in partial draft), I doubt that this is constitutionally required as a matter of relevant Supreme Court precedent. Let me first briefly address John Yoo’s recent WSJ comments.

Yoo’s mistake is in making a pragmatic argument about the availability of constitutional rights that can be attacked as has been done below. That said, Yoo’s pragmatic argument is a valid concern. Only an extremely limited understanding of combat operations would lead one to believe that law enforcement-like compliance with the Bill of Rights should be expected or required during armed conflict. There is no need for Yoo’s pragmatic argument, however, because precedent in this area appears to provide a different answer.

Public enemies of the United States have never been afforded the protections of the Bill of Rights. This is not based on their nationality or territorial location. A close reading of Supreme Court precedent clarifies that the political branches exercise war powers in a manner exclusive from the Bill of Rights (except with regard to U.S. domestic populations – where the relationship is less clear). Properly read and placed in context, neither Boumediene nor Milligan conflict with this. Quirin and Yamashita (and many, many other cases) support it. All are completely reconcilable under a proper analysis of relevant precedent, in my humble opinion.

Military law commentators expressed this conceptual framework in different ways. According to Francis Lieber, war suspended the civil laws between opposing armed forces. Therefore, their conduct and interactions (called “belligerent intercourse” by Henry Halleck) were governed only by the laws governing war, or any relevant and specifically applicable domestic law. The powers to conduct the nation’s wars are primarily shared by the political branches. This has historically included the trial and punishment of those violating international laws governing war (both enemy and friendly). These trials were not “jurisdictional gap-fillers” as Deborah frequently suggests, they were lawful measures of imposing punishment under the laws governing war. Indeed, the Supreme Court has separately held that neither military commissions nor courts-martial punishing strictly military offenses by U.S. service members exercise Article III judicial power. The court-martial system we know today, complete with military appellate and Supreme Court review, was not created until after World War II. It was then a policy decision, not a constitutional requirement.

We can debate the applicability of the laws of war to some terrorist conduct, such as pre-9/11 activities unrelated to the attacks of that day. However, if we accept that the law of war paradigm is appropriate both on and after that date, as the Court did in Hamdi, then relevant federal statutes and international laws governing war (meaning international humanitarian law and any relevant international human rights law clearly supplementing it) are the laws that govern the trial of such enemies.

This explains why military commissions, at their origins, had very loose procedural and evidentiary rules. Lieber implied that such trials need only be fair. There were no other requirements under the international or domestic law of that era according to Winthrop. For these reasons, Winthrop further states, the rules applicable at courts-martial were applied to commissions only by analogy, and a failure to follow them to the letter did not invalidate a conviction. The Supreme Court did not even review procedural matters on the rare occasions when it had jurisdiction to review certain military commissions, limiting its review only to matters of temporal (to determine whether convened during an armed conflict or occupation), personal and subject matter jurisdiction (see e.g. Yamashita). (This limited scope of review by civil courts originally also pertained to courts-martial. See Grafton v. U.S., 206 U.S. 333 (1907). In other words, neither appear to be within Hart and Wechsler’s Article I adjunct tribunals to Article III courts.)

The fact that some of these cases are being tried in Article III courts does not necessarily require them to observe constitutionally based rules of evidence, such as Fourth or Fifth Amendment case law. When the federal courts administered prize cases, which were both admiralty and law of war cases, they used certain evidentiary and procedural rules that had developed internationally. In other words, the courts applied only specifically relevant domestic and international rules, and in some cases developed others to fill lacunae. Some rules applied were different from those that would have governed a standard U.S. trial.

For me, the inescapable conclusion from a thorough analysis of Supreme Court precedent, supported by historical practice, is that the procedural and substantive rights to which KSM and others are entitled are only those required by federal statute or by international laws governing armed conflict. They do not stem from the Bill of Rights because those protections simply do not apply. It is impossible to reconcile the view that they do with a vast body of relevant Supreme Court precedent. Fortunately, these international laws are now much more robust than they were in Winthrop’s era. Additionally, as the Court found in Hamdan, Congress had – before the Military Commissions Act – tightened the reins of permissible procedural and evidentiary rules in Article 36 of the Uniform Code of Military Justice. (The MCA removed the requirements of Article 36 for its commissions.)

It is an odd argument which posits that adherence to the rule of law requires a different view of the status and effect of that law than the view that has historically existed in the branch of government constitutionally empowered “to declare what the law is.” While I strongly disagree with Yoo’s unilateralist interpretation of the separation of war powers between the executive and legislative branches (as a matter of text, original meaning, and over 200 years of precedent), those views have no readily apparent relationship to his views regarding the potentially misguided extension of the Bill of Rights to public enemies in armed conflict. One can only hope that the courts will properly read and apply precedent, and thereby avoid the seemingly ideologically-based arguments of those unfamiliar with it. One also hopes that the administration will recognize the perils of adopting any litigation position that does not seek to maintain this line of precedent.

25 Responses

A question::

Given that Article III courts are not in the regular practice of trying law of war offenses and are, by habit and familiarity, inclined to view doing justice as affording defendents the full flower of civilian constitutional due process, how likely do you think it is that they would acquiess in denying such process to those detained in military counterterrorist operations, purely on the basis of putative precedent or even positive federal statute?

In other words, supposing you are legally correct, do you think the Article III courts are institutionally capable of acting in counterterrorism cases as your reading of the law suggests?

11.18.2009
at 8:00 pm EST Nathan Wagner

“the procedural and substantive rights to which KSM and others are entitled are only those required by federal statute or by international laws governing armed conflict. They do not stem from the Bill of Rights” Precisely correct and rather substantial. In one of the few concrete examples, a civilian trial would use the regular Federal Rules of Evidence, which excludes hearsay, instead of the special rules of evidence that Congress wrote for Military Commissions, which permits broader use of hearsay.

In Federalist 84, Hamilton suggests that a Bill of Rights is unnecessary. Among other thing, courtroom procedures could be determined by statute instead of being written into the Constitution. We got a Bill of Rights anyway, but it does not apply to enemy aliens captured overseas. When it doesn’t apply, statute (as Hamilton notes) still does apply and may be perfectly adequate. There isn’t that much difference. All you lose are a few exclusionary rules invented by the court instead of being written into law.

An interesting question is whether the accused has a right to demand a trial by jury. That right derives from the constitution (is there any separate statutory language independently making the guarantee?). Bench trials happen all the time and hardly deny due process, but they normally require the defendant to waive his right to a jury trial. In a case where the defendant cannot rely on the Bill of Rights, and where an impartial jury might be almost impossible to find, this is a question worth asking.

If a defendant is denied the right to mount a “speedy trial” challenge under the constitution, but he still has the benefit of the statutory rules on Speedy Trial, do we really conclude that this denies “civilian constitutional due process”? The courts are certainly institutionally capable of sorting this out, but some judges are not individually capable of thinking this far outside the box.

11.18.2009
at 9:25 pm EST Howard Gilbert

All of this is based on the premise that the “law of war paradigm” is the correct way to look at this. I don’t see how that can be the case, given that KSM is on trial for what was done in New York, which, to my knowledge, hasn’t been a war zone since the war of independence, if even then. KSM wasn’t even arrested in a war zone, but in Rawalpindi in Punjab, Pakistan. During the period when 9/11 was in the works, he apparently worked out of Kuwait, not Afghanistan. In other words, there is no evidence KSM has at any relevant time been anywhere near a war and he does not stand accused of any war crime. (Art. 7 of the Rome statute requires that the crimes listed be committed as part of a widespread or systematic attack against any civilian population, i.e. “a course of conduct involving the multiple commission of acts referred to (…) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”, so no dice.)

So why should we be asked to accept that the Supreme Court’s war powers precedents are at all relevant here?

11.18.2009
at 10:15 pm EST Martin Holterman

“Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses, and incendiary and timing devices. While landing, they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing, they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City.” ex parte Quirin.

So German saboteurs that the Supreme Court ruled could be held and charged under the laws of war landed in New York state and were arrested in New York City in 1942. Nothing then logically prevents the 9/11 saboteurs from being part of an armed conflict just because they attacked NYC.

Read the 9/11 Commission Report and you will find that KSM did indeed work out of Afghanistan from late 2000 through 2001. After the death of his superior, Mohammed Atef, KSM was promoted and became the highest ranking military leader of foreign forces in the Taliban army. However, the US has never formally acknowledged that he held military rank.

Crime in wartime carried out by military personnel can still be charged as ordinary crime if it violates civilian elements of international law (air piracy) instead of violating the laws of war. The Holocaust was simple murder carried out by soldiers which has been charged in both military and civilian courts.

Admiral Isoroku Yamamoto conceived, planned, and commanded the attack on Pearl Harbor. KSM conceived, planned, and commanded 9/11. General Matsui commanded Japanese forces during the Rape of Nanking and was convicted by the International Military Tribunal and sentenced to hang. KSM can be viewed as a military figure or terrorist, depending on your inclination. 9/11 has been regarded as a military operation conducted in violation of the laws of war, a crime by military personnel against civilians, or as a separate criminal operation conducted as part of an armed conflict but indpendent of the military. It all depends on how you want to interpret and argue the facts. We won’t really know how the administration proceeds until they file formal charges.

11.19.2009
at 12:11 am EST Howard Gilbert

John,

I’m delighted to see you guest-blogging here. And thanks for the informative post.

I too think the nagging question is indeed the choice of the “law of war paradigm” (hereafter the ‘war model’) rather than “law/crime” model, and although I often defer to (or am persuaded by) Larry May’s reasoning on such matters, I think his admittedly tepid conclusion in this instance is wrong: “I’m inclined to think that the war model makes more sense” (in War Crimes and Just War, 2007: 310). Here’s why: at least insofar as we’re dealing with al-Qa‘ida militants, preference for the war model has perverse even if unintended effects, owing to the militant’s collective self-description or self-understanding as jihadists within the Islamic tradition.

The Islamic legal tradition (of Shari’ah and fiqh), which admittedly is no longer as intellectually vigorous and relevant in the manner it once was in the Islamic world, understands (the ‘lesser’) jihad (the ‘greater’ jihad of course being the personal struggle against evil and for the good, entailing such things as self-purification and self-discipline) as something very much like (if not identical to) in significant respects, the Just War tradition that begins with Augustine, is philosophically fortified by Grotius, and in our own time is formulated in secular moral terms. Taking this tradition to encompass both jus ad bellum and jus in bello rules of war, John Kelsay thus has ample reason to title his latest book on this topic, Arguing the Just War in Islam (2007). Even a cursory examination of this tradition will reveal the unequivocal failure of al-Qa’ida militants who resort to terrorist tactics on behalf of their short-term goals and long-term aims to conform with the minimal ethical and legal requirements of jihad within the legal schools. In other words, based on an ethical and legal assessment using the normative criteria common to this tradition, these militants are not entitled to characterize their actions within the rubric of jihad:

“The most important weakness in the militant claim to represent true Islam is the contradiction between the end professed and the means employed. Those who seek rule by the Shari’a should themselves be ruled by its norms. If they fail in this regard, their claim to represent the cause of justice and right is placed in doubt. Militants, it appears, are their own worst enemy.” (Kelsay: 198)

In short, by employing the war model, at least in the case of these militants, we are reinforcing the not uncommon perception in parts of the Muslim world that they are indeed sincere Muslims fighting a jihad according to a rationale and strictures culled from the Islamic tradition. And this, in turn, serves to undercut the arguments of such well-known Muslim democrats as Abdulaziz Sachedina, Abdullahi an-Na‘im, Khaled Abou El Fadl, and others like them (e.g., those affiliated, for instance, with the Center for the Study of Islam and Democracy in this country), as well as the many Muslims around the world susceptible to their arguments, that al-Qa‘ida and similar militants have no warrant whatsoever for resorting to violence, let alone terrorism.

In any case, how we treat self-described jihadists or Islamist militants accused of terrorist acts will have consequences throughout the Islamic world that we would be wise to contemplate:

“Will Muslims believe that democracy is legitimate if they perceive injustice in the behavior of democratic states? An-Na’im’s criticisms constitute a warning: if the United States and its allies are not careful, the conduct of the war on terror will present militants with a golden opportunity. The greatest weakness of militants involves a gap [I would say an egregious contradiction] between their stated goals and the means they employ. Defenders of democracy must not give cause for Muslims to identify them with an analogous gap. The question ‘Who will believe that your cause is just, when your behaviours are so unjust?’ may provide a rhetorical tool for militants as well as for democrats.” (Kelsay: 204)

The global community of Muslims is looking on with considerable interest, to put it feebly, and we should thus keep in mind the fact that

“Muslim democrats help to show the way for this community, by showing that the practice of Shar‘ia reasoning can legitimate democracy. In addition, they write and speak in ways that invite scrutiny from non-Muslims. [….] When Muslims argue about the just war, they use sources that are unfamiliar to most Americans or Europeans. [….] [Muslim democrats] speak about right authority, just cause and right intention;…the prohibition of direct attacks on civilians and concerns about excessive force are recognizably present in Muslim discourse. Muslims understand the concerns of the just war tradition, and they speak about these in terms that resonate with a billion believers around the world. Beyond this, Muslim democrats speak in ways that resonate with non-Muslims. [….] In the end, the fate of Muslim democracy may well be connected with the conduct of the war on terror. George Bush was right on that June evening in 2005: the conflict between advocates of democracy and Islamic militants is a defining moment for humanity. [….] Even as the war on terror will have an impact on the cause of Muslim democrats, so the fate of Muslim democrats is going to have an impact on the political future in the United States, the European Union, around the world.” (Kelsay: 223)

I think, therefore, we have sufficient if not compelling reason to prefer a law/crime model in this instance, if only to help buttress the argument of Muslim democrats, among others, that al-Qa‘ida militants cannot assume the mantle of Islamic jihad by way of sanctioning terrorist acts. In so doing, we will also, if only indirectly, support the urgent and moral cause of Muslim democrats around the world. Resorting to the war model, on the other hand, serves as an unintended but no less effective reinforcement of the self-description and self-understanding of al- Qa‘ida militants that they are engaged in a jihad. We do not see their terrorist acts as falling within the Just War tradition, especially jus in bello rules of war, nor do Muslim democrats view this as a jihad in the traditional sense. We might, therefore, pause to consider taking advantage of situations or opportunities that present themselves to us to strengthen and spread such convictions rather than undermine them.

In response to your bringing up the Rome Statute – Article 7 refers to Crimes Against Humanity. You mention the chapeau element for a CAH requiring it to be “a widespread or systematic attack directed against any civilian population”. If you refer to the ICTY Appeals Chamber Judgment of 12 June 2002 on P v Kunarac et al. they clearly interpret under IV B 2, 3, 4 and set the precedent for the reading of “widespread or systematic attack directed against any civilian population” which in my reading would clearly apply here. Additionally, under Article 25 Individual Criminal Responsibility, KSM would fall under that jurisdiction.

However, since you bring up the Rome Statute. Two bigger issues are present. First, the US is not a signatory. Second, even if they were, since the Rome Statute did not go into effect until July of 2002 and this event happened in 2001, under Article 11 there would be no jurisdiction ratione temporis.

Finally, you try to use Article 7 to show it is not a War Crime, that is not a war crime article, that is a Crimes Against Humanity Article. Under the Rome Statute, War Crimes are Article 8 violations. So even though you used the wrong article, I will concede that there may be a point on the “war powers” of the Supreme Court, though I would also say, that since you try to use the Rome Statute as a guide, and since that Statute was created to punish the most heinous crimes of ‘genocide’, crimes against humanity’, ‘war crimes’, and ‘crimes of aggression (yet to be defined)’ I believe that someone like Howard Gilbert will do a better job of tying that together than I can and show how it can be tied to the war powers.

11.19.2009
at 9:37 am EST Dan S

The Pentagon was a legitimate military target. The WTC was an economic target with many civilian casualties. Had “the planes operation” hijacked cargo jets on the ground and crashed them into the same buildings, we might be arguing about war, war crimes, and simple crimes. However, there are specific international laws about hijacking commercial airliners. That is never a lawful military act and those who do it are air pirates and lose any claim to combatant status. Whatever happens after that is simple mass murder, even at the Pentagon.

However, the 19 hijackers were all soldiers selected from the foreign fighters of the Afghan Army under the Taliban, and the operation was planned and commanded by foreign commanders who were part of that army. This could be allowed to confuse things.

If it were up to me, I would charge KSM for the hijacking and for the deaths of the air crew and passengers on the four planes. He can only be executed once, and adding charges for people on the ground, especially in the Pentagon, will simply subject us to hours of his ranting about what he sees as military necessity in war. Let him be charged for piracy unrelated to any armed conflict. This is also a charge with clear international and US domestic law and no ambiguities. At the same time, this makes this a civilian trial with no “law of war” components.

Add in charges for the deaths at the WTC and you open up questions about Dresden, Tokyo, Hiroshima, Nagasaki, Shock and Awe. Things become fuzzy, and those inclined to hate us will find a basis to twist the trial for propaganda purposes.

11.19.2009
at 10:17 am EST Howard Gilbert

@Howard Gilbert: I’ll grant that ex parte Quirin probably allows for a “war paradigm” here. I do think, though, that it is distinguishable if the judge/judges/justices were so inclined. The big problem is that Quirin and the other were part of an organised army. For international law purposes, it has always been tricky to decide whether the Taliban are, in fact, an army, i.e. whether they have the level of internal organisational structure, with hierarchy, some measure of rules of engagement, etc., that they can be considered an army for legal purposes, even without uniforms. I’d say the same goes for Al-Qaeda. Just because Congress authorised the use of military force on them, doesn’t mean Al-Qaeda is an army.

(Side question: Did Congress avoid using the term Declaration of War because such a thing has gone out of fashion, or because they were unsure about whether they could, in fact, declare war on all the entities they intended to authorise the use of military force against?)

Given that Ex parte Quirin allows but not compels the result advocated in the original post, we’re back to more pragmatic arguments, such as the ones suggested by you , and by Patrick O’Donnell above. Either way, the “war paradigm” has to be argued, not assumed.
@Dan S.: I mentioned the Rome Statute only because it is the most authoritative legal statement of war crimes currently existing. I didn’t mean to argue it should somehow bind US courts. I mentioned art. 7 because that’s the only one that seemed remotely applicable, given that I already argued earlier that 9/11 was not part of any war. (Which, imho, rules out war crimes under art. 8.)

Incidentally, and still hypothetically, I’d say that 9/11 does not qualify as “multiple”, notwitstanding the fact that the civil jury in the insurance litigation found that the WTC attack was “two attacks” for the purpose of the various insurance contracts involved, because they were conceived together as a single, coordinated effort. But clearly that is a question where reasonable minds can differ.

Nathan makes a very valid point. It is very likely that the courts will default to determining to what extent the protections of the Bill of Rights should apply rather than if they do. My position would be one of many the government might assert. I fear it would be one they might shy away from for political rather than legal reasons.

The issue is also complicated by the context of these cases. The issue is too complex to go into the necessary detail here. Suffice it to say that prize courts operated pursuant to a jurisdictional grant and administered primarily the law of nations (or applicable treaties, domestic statutes, controlling executive acts or judicial decisions as spelled out in Paquete Habana). These criminal cases will necessarily entail prosecution of a statutory offense implementing the law of nations. For that reason, I believe the prize courts had greater flexibility than might be constitutionally permissible in these cases.

As I have stated here before, there are many ways to potentially exclude coerced evidence without resorting to the Fifth Amendment. I do not intend to suggest such evidence may be properly admitted as a general matter.

Additionally, rules promulgated by statute or pursuant to statutory authority obviously still govern the courts. I here argue only that protections of the Bill of Rights should not be found to apply in any way so long as the government was acting pursuant to its war powers when evidence was collected or obtained. Those powers traditionally include both the collection of intelligence about enemy activities as well as the collection evidence relevant to trial and punishment for violations of the laws of war (rather than purely domestic offenses).

11.19.2009
at 12:34 pm EST John C. Dehn

I here argue only that protections of the Bill of Rights should not be found to apply in any way so long as the government was acting pursuant to its war powers when evidence was collected or obtained.

That sounds eminently sensible.
But then, I agree with that line from Alexander Hamilton quoted by Howard Gilbert above. The Supreme Court, in cases such as Mapp, has written too much procedural law into the Bill of Rights, making it excessively rigid, incapable of being updated or adapted to different circumstances.

(Mapp, specifically, means that it is impossible for US lawmakers to enact different “punishments” for unlawfully obtained evidence, such as a reduction in sentence if found guilty.)

Congress could not use the term “war” because an “act of war” invalidates all insurance coverage for 9/11. Warren Buffett led the insurance industry in agreeing to cover damages as long as the term “war” was not used.

There is a country called Afghanistan (it is on every map, it is a member of the UN, it is a signatory to the Geneva Conventions). In 2001, 90% of it was controlled by a government led by the Taliban (alternately, it was run by a Pashtun tribal alliance in which the Taliban were the leading element, al Qaeda was incorporated as an honorary “tribe”, and the Pakistani military also played a support role in the leadership). The army of 45,000 light infantry (10,000 from Pakistani Pashtun tribes with staffing from Pakistani officers who “retired”, walked across the border, and “volunteered” in Afghanistan) was engaged in a civil war with what we called the “Northern Alliance”.

Since the communist Afghan Army in the 1980s was allied with the Russians, in the great war of liberation everyone wearing a uniform was a bad guy and every good guy was a tribal fighter. So suggesting that the Afghan Army in 2001 wear uniforms was not rational.

After 9/11 the White House (Gonzales), the DOJ (Yoo), and the State Department (Bellinger) wrote some memos. The thrust of their argument was that the enemy armed force was built from tribal militia (certainly true) and that under the Third Geneva Convention militia had to meet the “four part test” that includes wearing uniforms and following the laws of war. Therefore, the enemy army was not protected by the GC or entitled to POW status.

The problem with this argument is that it sweeps under the rug the actual language of Article 4 of the GC, and the negotiating history, and prior agreements still in force. The GC covers “Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.” Then separately it goes on to cover militias meeting the 4 part test.In the negotiations, the Russians insisted that militia incorporated into the regular army did not have to meet the 4 part test because, well, being Russian they are better at logic than some other nationalities.

The GC incorporates all prior agreements, including explicitly the Hague Agreement of 1907. Article 1 of the Hague Agreement applies its rules to “armies” and also to militia that meet the 4 part test. It goes on to say that “In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army.'” (thus excluding them from the 4 part test). The Russians pointed out that unless the GC similarly applied the four part test only to independent militia units and not to those incorporated into the main army force, it would be inconsistent with the Hague Agreement which was not supposed to happen. They got the wording change, but apparently it was not in sufficiently plain simple language that 50 years later Yoo and Bellinger could not misinterpret it.

The Army of Afghanistan should be covered by the Third Geneva Convention simply because it is the army of a signatory. There isn’t supposed to be any test or qualification. This applies to those of the 45,000 soldiers who were captured (men like Hamdi) but not necessarily to people who never actually served in the army. Unfortunately, with sloppy record keeping, saying for sure who was and wasn’t a soldier is more difficult than it is in the US army (where you are a soldier from the day you take the oath until you receive your discharge, whether honorable or dishonorable).

Thus it should be easy to prove that Yoo was wrong about the army in general, but hard to say for sure if KSM was or wasn’t an officer in that army at the time he commanded the 9/11 attack. He was treated as a military leader, but I am not sure there is anything in his biography to show he actually enlisted and went through basic training like everyone else.

Leave al Qaeda out of this part. In the war against the Russians, they made sure the mail got delivered. Originally they were like the USO. They recruited, trained, and financed soldiers and units, but the guy who encourages people to join an army isn’t necessarily a soldier himself. Foreign soldiers who were trained by al Qaeda still ended up at the front fighting for the Afghan Army against the Northern Alliance just like all the Pashtun militia around them. Al Qaeda trained 18,000 soldiers, but estimates are that only about 100 people were ever actually members of the organization (and KSM wasn’t actually one of them). Just as not all Russian soldiers were Communist Party members, not all foreign fighters in Afghanistan became part of the inner circle.

11.19.2009
at 2:33 pm EST Howard Gilbert

Question:

In reference to Howard Gilbert’s 10:17 am post, if KSM is tried under the “law/crime” model, how and to what extent will the way in which he was detained and the methods used to extract his testimony interfere with the “clear international and US domestic law” on the charge of piracy?

11.19.2009
at 2:57 pm EST Savannah

@Howard Gilbert: At least one problem with your argument is that, as far as successive US governments were concerned, the Taliban were never the legitimate government of Afghanistan.

Martin: Article 4 incorporates “(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.”

Recognition of the government is specifically NOT an issue in GC coverage. Obviously “regular armed forces” doesn’t necessarily include a dozen or a hundred irregular guys, but 45,000 soldiers is larger than the standing army of about 100 other member states of the UN.

Savannah: Obviously statements extracted through torture are excluded. I would, however, argue that his statements to the Military Commission years later, in another part of the world, after repeated warnings about self-incrimination and the right to remain silent, are admissible. The stuff in the middle is up for discussion. However, if he pleads guilty then evidence doesn’t matter, and there may be enough evidence in his papers and on his computer to convict him without his statements. The most exotic possible outcome would be for Jose Padilla to trim a few years off his sentence by agreeing to testify about his two weeks of training with KSM and the other 4 defendants in the second half of March, 2002.

11.19.2009
at 3:40 pm EST Howard Gilbert

However, the 19 hijackers were all soldiers selected from the foreign fighters of the Afghan Army under the Taliban

Is this correct? I’ve never seen that all 19 hijackers were Taliban members.

The Taliban were an Afghan movement. They were the leading element of the government. Foreign fighters who received training at the al Farouq camp and then joined the Army were subject to orders from the government led by the Taliban, but they were not “Taliban members” (any more than the entire US Army changed from Republican to Democratic last January).

KSM is said to have hand picked the 9/11 hijackers from the pool of foreign fighters trained at al Farouq, although the individual records are incomplete and I cannot prove it in each case.

11.19.2009
at 4:11 pm EST Howard Gilbert

Like others have noted, a lot of this turns on whether, as a matter of law, there is an ongoing war that can justify departures from the procedures of regularly constituted Article III courts. It’s worth noting that there have been dozens of terrorism cases tried in Article III courts (many of which have been against Al Qaeda affiliates), and all of these cases have taken the crime/law enforcement route to my knowledge. See Human Rights First, In Pursuit of Justice.

This is not the same as saying that a law of war paradigm has been affirmatively rejected. In fact, the manner in which most district courts are handling the Guantanamo habeas petitions suggests a willingness to acknowledge some form of a law of war paradigm for detention purposes. However, it seems that the same subject matter and personal jurisdiction issues that are likely to plague the Military Commissions for years to come will also plague federal courts. In other words, departures from regular criminal law procedures depend on having a combatant in court charged with a violation of the laws of war that occurred during some kind of armed conflict. The smarter decision for prosecutors, and the more likely course of action I would think, is to try these folks under domestic criminal law and avoid the tangled legal issues that IHL scholars have failed to resolve over the last 8 years.

Even with this criminal law/law enforcement approach, certain Bill of Rights provisions might not apply, or will apply but will nonetheless accommodate counterterrorism prerogatives. Government action that occurred abroad seems to be the best candidate for a carve out regarding when certain provisions of the Bill of Rights might not apply. (Although Judge Sand of the Southern District of New York held that the 4th Amendment did apply to interrogations of suspects abroad in connection with the East Africa Embassy Bombings.)

Thanks for the interesting comments everyone.

11.20.2009
at 12:13 am EST Raha Wala

A couple of closing thoughts on this post.

Howard is probably correct regarding many things. I address only one. As I indicated in the earlier comment, to the extent that constitutional requirements are reflected in procedures promulgated by statute or pursuant to statutory authority, they will bind the federal courts – but only by virtue of their promulgated (not constitutional) status. So, to use Howard’s example, the prescribed Federal Rules of Evidence regarding hearsay will apply, but refinements to it made by Sixth Amendment Confrontation Clause case law should not.

Regarding the existence of an armed conflict, an issue mentioned by many, I believe the AUMF may definitively establish its existence for the courts. In other words, regardless of whether the conflicts with al Qaeda or Taliban constitute “armed conflict” under conventional or customary international law, the AUMF reflects the understanding of the political branches that one exists. Under a simple application of the later-in-time rule (and other relevant Supreme Court precedent), the joint actions of the political branches would appear to bind the courts on this issue.

Thanks to all for the stimulating discussion. I apologize for not having more time to engage in it.

11.20.2009
at 2:22 pm EST John C. Dehn

You’re probably right about the role of the AUMF vis-a-vis the courts, but in addition to the consequences I cited above, we might consider the myriad Hydra-headed problems and disturbing implications that result from this choice as spelled out in the writings of Rosa Eherenreich Brooks and Mary Ellen O’Connell (among others), e.g.: war everywhere and without end, and complete disregard for the relevant rules of international law (Realism with a vengeance).

The thing about war is that everyone always calls the enemy nasty names like “criminal” and “terrorist”. The enemy never fights according to “our rules” and is, therefore, some inherently evil group who should not be given the dignity of being treated as soldiers. Then the war ends, we hang a few war criminals, and everyone else is forgiven.

During WWII some Japanese officials decided that US air crews shot down were common criminals because flying at 30,000 feet and dropping bombs on cities lacked a proper “warrior’s spirit”. After the war, we tried them as war criminals and hung them. During Korea the Chinese and during Vietnam the NVA claimed that captured US soldiers were criminals who had to confess their crimes against humanity.

Both the Right and the Left act as though Americans are God’s chosen people and that the US Constitution is the perfect document superior to all international law. I reject the patronizing attitude that enemy soldiers should be thankful that we give them all the rights we lavish on Ted Bundy or Charlie Manson and accept that they are murdering pond scum deserving of the protections we grant to child molesters.

The problem here is that International Law is symmetric. There is no special rule that says that the US is always right and every other country is always wrong. So if we decide to charge enemy soldiers with domestic crimes and try them in domestic courts because we have all agreed to call them bad names like “terrorist”, then in every other war the enemy will do the same thing to our soldiers.

If Bin Laden decided to try a captured US Marine under his view of Shari’a, declared that he violated the laws of God, and then cut off his head, how exactly is that different from our unilaterally deciding to try an Afghan soldier in our court according to our domestic law and then executing him. Soldiers are supposed to have combatant immunity. They cannot be tried in civilian court for civilian crimes, but only in military court for violations of clear international law. Break this rule because “everybody agrees they are terrorists” and the Geneva Conventions aren’t worth a roll of Charmin Ultra-Soft.

Now I am not saying that there is anything wrong with trying KSM for 9/11. I am saying, however, that this is not a policy decision where we do what is popular, or what agrees with a personal view of right and wrong, or even what we think will help us win the war in the minds of people overseas.

All that implies that we have a choice. The decision about civilian or military, about law enforcement or armed conflict is as much a legal question as guilt or innocence. It either is one or the other, but that is for a tribunal to decide according to law, not for politicians to decide based on polls or ideology. It is never popular to give captured enemy soldiers any kind of protection at all. I am sure the Japanese people were happy to see American air crews hung. That is why, if the issue is in any doubt at all, we should err on the side of the armed conflict model and grant someone who even “might” be an enemy combatant the full protection and status of POWs.

In most countries, protection as a POW means you don’t get simply shot on the side of the road. In the US, however, being a POW means you don’t get all that “innocent until proven guilty beyond a reasonable doubt” stuff. For the individual detainee (and especially for his lawyer), taking a chance in civilian court may be a better legal strategy than accepting POW detention for the duration of hostilities. However, you don’t get to make this decision case by case. It is a global decision that applies to the entire enemy force.

11.20.2009
at 7:49 pm EST Howard Gilbert

I’m not sure I agree that the existence of the AUMF obviates the need to engage the IHL analysis on its terms. First, the AUMF was passed after many of the substantive crimes that have been alleged took place, raising real ex post facto issues. Second, courts have indeed taken a deferential view in granting the political branches license to declare that an armed conflict exists, but courts have been less deferential in allowing the political branches to define its contours. As a result, the Obama administration has been having a hard time showing, in habeas proceedings, that individuals who are supposedly “combatants” have indeed contributed to some armed conflict. Similarly, Hamdan revealed that the Supreme Court is ready to challenge notions that “conspiracy” could be considered a war crime. In short, courts might have ceded the existence of an armed conflict, but who participates in it (personal jurisdiction) and what constitutes participation (subject matter jurisdiction) are very much live issues for courts.

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